Tortured Answers

As ludicrous as it might seem that Michael Mukasey's official view on waterboarding is that he can't say whether or not it's torture until he's been confirmed first, it's even more ludicrous that Benjamin Wittes thinks this makes sense:

It may be obvious to senators--and to me, for that matter--that waterboarding crosses a legal line. But it would be very wrong for a nominee to call foul on a series of opinions which he cannot read, on which a major covert action program depends, which individuals serving their country have used to assure themselves that they operate within the law, and which happen to represent the position of the department Mukasey aspires to lead.

So basically, waterboarding is torture, and it's obviously torture, but it would be "very wrong" for a would-be Attorney-General of the United States to say so. And what if that means confirming yet another Attorney-General who will condone this act of torture? Well:

The Democrats have a big club to wield over Mukasey's head to make sure they don't get snookered: Without a strong working relationship with them, he won't be able to get anything done.

Now you're sitting here and saying to yourself, but wasn't this just as true of Mukasey's steadfastly pro-torture predecessors? But Wittes, using the same powers of counterintuition that allow him to divine the notion that overturning Roe v. Wade would be wrong "as a jurisprudential matter" but good "for the cause of abortion rights" turns this into an argument for the "see no evil" approach:

The lack of such a relationship gravely impaired both of his predecessors, albeit for different reasons. And, with only a year to serve in office, Mukasey's clock will tick loudly from the start. He will prove nothing but a caretaker unless he can act as a bridge between the ruling party on Capitol Hill and an administration that has burned its other bridges to Congress yet desperately needs constructive legislation in a variety of areas related to the war on terrorism.

When in doubt, count on the Bush administration's good faith! Thank the Lord we have Brookings scholars around to offer us independent research and analysis.

Comments

So what's the picture?

Posted by Ragout | October 30, 2007 7:57 PM

Yeah, that's totally stupid.

Why is it beyond the power of the Democratic Senate to get Mukasey to take a position on whether waterboarding is torture? It's essential that we know what he thinks.

Posted by southpaw | October 30, 2007 8:04 PM

"Nothing but a caretaker" is good enough, for them. The administration doesn't "desperately need" legislation at this point; they've got everything they need. All they're after now is looking like they're doing something.

What we need is someone who will actively root out the corrupt and anti-democratic forces that have taken over the DOJ. An AG who's equivocal about waterboarding is unlikely to do that.

Posted by Tom Hilton | October 30, 2007 8:13 PM

Without a steady production of new legislation the hordes of terist, iligal aluens, cambotatants and other varmint would overrun good ole USA in less time that it takes an acting Attorney General to change status to something more permanent (like former Acting ...).

But really, the courts were as servile as they possibly could. At worst, Administration can be "rebuked", like, that cannot keep everybody locked forever without any reasons whatsover, but after some number of years they are obliged to have some cangaroo court, at least in the case of an American citizen.

And why? Because rather than keeping the guy in utter secrecy, they made him a subject of press conferences. So, US citizen, and they bragged how they prevented a highschool dropout from building nuclear devices wrecking havoc all over our beatiful country.

As far as torture is concerned, it was established that it is wrong to delegate it to untrained reservists, bit quite OK if it is done by professionals who do not brag, do not make pictures etc.

Legislation is needed solely for political football. But that makes it absolutely crucial. If GOP will not prevail, terrists will get bold and they will attack us here.

Posted by piotr | October 30, 2007 8:26 PM

i nominate wittes for the charley brown prize in cluelessness. how many times do the bushies have to pull the ball away before this dim-bulb gets it? was he just born with a 'kick-me' sign on his back?

jesus, what a loser. and by his misuse of his position of influence, he wants to make a loser of the rest of america, and our constitution, too.

Posted by kid bitzer | October 30, 2007 8:48 PM

Ben's a nice guy, but there's a reason he's had the nickname "witless" since college.

Speaking of which, here's a fun factoid: during a brief period of time in the early '90s, the same small campus was home to Wittes, Michelle Malkin, and Get Your War On's David Rees. (And, for that matter, DC mayor Adrian Fenty.)

Posted by The Confidence Man | October 30, 2007 8:54 PM

"So what's the picture?"

The picture is a painting that is hung at Tuol Sleng in Phnom Penh. It was painted by one of the few survivors. He lived because nobody really knew who Pol Pot was (including his parents). Pol Pot needed paintings of himself, and the artist in question painted them. So they didn't kill him. I can't remember the name of the artist, but I did see this painting and others on my tour of the Tuol Sleng facility. The most horrifying part of the tour was the realization that we are doing exactly the same thing. Well, not exactly. Our superior medical knowledge allows us to take it a little farther.

Posted by fostert | October 30, 2007 8:56 PM

I think I have that sprinkler for my houseplants.

In any case, if the practice of so horrific, what's preventing the Democrats frm passing a law outlawing this specific technique and removing the ambiguity from the law? Oh, right, the Democrats would rather have the political issue.

Posted by Al | October 30, 2007 9:29 PM

"take it a little farther"

That should be 'further' shouldn't? For some reason the 'further' vs 'farther' issue is the hardest for me to remember. I wasn't actually on the "Further" bus, so maybe that's why.

Posted by fostert | October 30, 2007 9:33 PM

Hey, Al, wrap a towel around your head and lay under the sprinkler and have your wife pour it on from the sprinkler. (I'm sure she'll be willing.)

Keep doing it until tomorrow, okay?

Then post about how it was all so enjoyable it doesn't really pass muster as torture, but really is just another form of kinky sex.

Nitwit.

What part of "controlled drowning" don't you comprehend?

Posted by Richard Steven Hack | October 30, 2007 9:38 PM

al, you pathetic imbecile:
a new law would be pointless.
it is already illegal, by statute, by international treaty, and by our constitution.

there is no ambiguity in the law.

there is only a coordinated conspiracy among certain high-level officials--most of them with no military service to their names--to break the law.

and then there is an honorable attempt at push-back by members of the military, by intelligence professionals in the fbi and cia, and by all people who love the constitution.

all of us trying to stop this gang of war-criminals from trashing america's highest principles.

and then there are patsies like you, doing your masters' bidding for a few bucks a comment. after they've used you like they used the religious right, they're never going to give you a meaningful share of the billions they've raked off this war. you'll be back in the gutter again with your confederate flag and your dreams of glory.
what a pathetic shill.

Posted by kid bitzer | October 30, 2007 9:39 PM

Again, liberal arts weenies --who unfortunately sometimes become lawyers and rise to high power -- seem witless to engineers.

Galileo made the point that the way to resolve matters is NOT to engage in endless arguments of theory. DO an empirical experiment, dammit.

Strap Michael Mukasey's ass down in front of the Senators and waterboard HIM for about 10 minutes. THEN Ask him if he thinks it's torture.

If Mukasey's still noncommittal, then continue until he answers.

If you want a second opinion, then waterboard Benjamin Wittes' ass for 10 minutes and ask him.

If Mukasey's refuses to submit to this experiment, then turn him down.

Posted by Don Williams | October 30, 2007 9:45 PM

So this really isn't about Mukasey as much as about calling out Wittes as an unprincipled chimpanzee who spouts crap as if it isn't reverse-engineered administration dogma.

I, like Mr Yglesias, have a degree in philosophy.

Wittes: But Mukasey's reticence on this issue should not necessarily doom his prospects as attorney general. Liberal legal blogger extraordinaire Marty Lederman, writing in praise of the Democratic follow-up letter, asks: "If Mukasey now does not publicly agree that waterboarding is unlawful, could (principled) Dems who signed a letter such as this really vote for him?" But there are several good reasons for Democrats to let Mukasey get away with dodging the question--as they likely will.

In which Wittes substitutes moral principle with political affiliation.

There are arguments and then there are arguments, and then there's bullshit.

Logic: the last refuge of the scoundrel.

Posted by Monty | October 30, 2007 9:50 PM

That he cannot say so means he has been told not to say so.

That he has been told not to say so, and follows that instruction, means that he is not worthy of confirmation.

Let Bush have an acting AG for the next year and a quarter. Don't give him the chance to make a recess appointment. That would tell the truth: the DoJ is screwed until Bush heads off back to the pig farm.

Posted by pseudonymous in nc | October 30, 2007 10:15 PM

Strap Michael Mukasey's ass down in front of the Senators and waterboard HIM for about 10 minutes. THEN Ask him if he thinks it's torture.

You know, I've heard that form of interrogation is not terribly effective at producing reliable answers.

Posted by southpaw | October 30, 2007 10:39 PM

You know, I've heard that form of interrogation is not terribly effective at producing reliable answers.

What if 'producing reliable answers' isn't the point of waterboarding?

Posted by Monty | October 30, 2007 10:47 PM

1) Waterboarding -- and other interrogation methods used by the Administration -- are most likely torture. Otherwise the administration wouldn't be using those methods.
2) But if they are "not torture" -- then those who advocate using them should be willing to endure them. People like our poster Al, for example.
3) And if Mukasey is not sure, then he should want to experience the method --so he could make a judgment from first hand experience.

4) Note that Mukasey's REFUSAL to answer the Senators' questions should be automatic grounds for his dismissal.

The Constitution gives Congress --NOT the President -- the power to define rules for treatment of prisoners. So the Senate is well within its rights to ask about this area.

5) Mukasey should be willing to define what he thinks is the right policy, to defend his recommendation, and to state whether he will enforce the rules that Congress sets after it considerations his recommendation.

For Mukasey To deliberately evade that issue --by refusing to discuss the issue -- should in and of itself disqualify Mukasey from further consideration.

Posted by Don Williams | October 30, 2007 11:28 PM

You know, I've heard that form of interrogation is not terribly effective at producing reliable answers.

I think they produce relatively reliable answers about the nature of torture, as long as the person asking the question isn't the one in charge of the hosepipe.

Posted by pseudonymous in nc | October 30, 2007 11:31 PM

It's just smoke and mirrors to say that the reason Mukasey would hesitate to call waterboarding torture is that the soldiers and agents who relied on official pronouncements saying that waterboarding is not torture would suddenly become liable for criminal prosecution. There is a mistake of law defense when one relies in good faith on official pronouncements of law that turn out to be erroneous.

This is all covered by the Albertini case (http://www.audiocasefiles.com/cases/detail/case/8647/) which acknowledges that it is a defense to a criminal conviction where the actor relied on an official statement of law that turned out to be erroneous. That includes administrative orders and interpretations given by officials charged with interpreting the law at issue (here, that would be the AG, the OLC where its an exec order, etc.)

As AG, Mukasey would be giving authoritative interpretations of law that are binding on those within his department and would be relied upon by military personnel. The only way military would be criminally liable is if they ignored the erroneous authoritative interpretation and then violated the law as well.

At any rate, it would be Mukasey's duty as AG to interpret the laws on the basis of what the law IS, regardless of the potential liability of underlings. And interpreting the laws faithfully by calling waterboarding torture would not send our armed men and women off to jail.

Posted by StJoe | October 31, 2007 12:35 AM

You know, I've heard that form of interrogation is not terribly effective at producing reliable answers.

I don't really care if crushing someone's testicles in a vice gives them psychic powers to tell you everything bad that is going to happen for six months.

The utilitarian argument is reprehensible, and if you have any kind of moral seriousness it should embarass people to make it. I think if you had asked me when I was five how to recognize an evil, worthless, piece of filth having some sort of sympathy for a torturer or his aims would have clicked. This is a very basic step for humanity, and for those who can't make it you don't argue with them on utilitartian grounds, you hope to god they don't reproduce.

Posted by Ed Marshall | October 31, 2007 2:25 AM

See, now you've gone and burnished Wittes' "not-a-liberal" credentials, which is all that he seeks in life.

Coherence, honesty, and integrity are the pittance he pays for the title of contrarian.

Posted by Elvis Elvisberg | October 31, 2007 2:36 AM

Isn't Mukasey quite obviously a caretaker running out the clock in any case? He's taking a tainted job with only a year left in the term under a stubborn president facing an opposition majority. Does this really sound like someone who expects to do Big Things working with the Democrats?

And if the administration "burned its other bridges to Congress", and also burned the current bridge he's applying for, why on earth would Wittes expect that they'd want to reestablish this bridge? If the administration was that intent on getting legislation through this Congress, why would they have burned all their bridges in the first place?

Or, shorter me: Does Wittes even read what he writes?

Posted by Royko | October 31, 2007 4:17 AM

Fostert on Pol Pot and touring Cambodia - The most horrifying part of the tour was the realization that we are doing exactly the same thing. Well, not exactly. Our superior medical knowledge allows us to take it a little farther.
Posted by fostert

Shades of the Dick Durbin speech that *spit* America is worse than HItler, Stalin, or Pol Pot.

But, of course, Fostert, no one would DARE to question your patriotism and LOVE of the soldiers and others fighting (as Pol Pot would approve of??) the Islamic radicals.

************************

The whole torture debate can end tomorrow. All Reid and Pelosi have to do is submit a law that defines what acts specifically constitute torture. And that all US agencies are barred from their use. NO matter the Geneva Convention status of the enemy, no matter how many soldiers and American civilian lived could be saved....or maybe they would say that "up to 24 Americans in uniform may be projected to die before coercing an Al Qaeda terrorist to talk is considered justified for the circumstances, waterboarding is not allowed unless it is reasonable to fear no less than 300 soldiers or greater than 20,000 American civilians lives may be lost by not dspensing with precious terrorist civil liberties....

But guess what?

No member of Congress wants their name on a law that will spotlight them with angry victim families if their scruples result in significant American deaths.

It is a quite sensible fear of personal or electoral accountability to rage-stricken friends and family in another 9/11 Mass catastrophe or survivors of a platoon of Marines on the battlefield - unable to gather life-saving intelligence from terrorists by law - sacrificed to political correctness.

Posted by Chris Ford | October 31, 2007 5:51 AM

Al wrote:

"In any case, if the practice of so horrific, what's preventing the Democrats frm passing a law outlawing this specific technique and removing the ambiguity from the law?"

Do you honestly think that it is the alleged "ambiguity" of the law that keeps the Bushies thinking that waterboarding is o.k.? The reason is that the Bushies think that they need waterboarding, that waterboarding is o.k. because the victims are just some bunch of evil islamo-fascists and that the Dear Leader... sorry, of course I meant the Commander in Chief has the authority to order any crime, can break any statute, and ignore any court order, if he deems that expedient to "protect America", and that Congress the courts should mind their own damn business.

If Congress did what you suggest, than Bush would veto the bill and, if necessary, make a signing statement that he will interpret the act "in consistence with [his] constitutional authority as Commander in Chief", thereby happily fart in Congress' face, and just go on with business as usual.

How ignorant are you?

Posted by Patrick | October 31, 2007 8:06 AM

Patrick wins.

Posted by southpaw | October 31, 2007 8:14 AM

Al is right. Congress is utterly spineless on the issue of torture.

And the reason Mukasey doesn't say waterboarding is torture is perfectly obvious: the current administration has used waterboarding, and so if he says it is torture then he is saying the current administration has tortured.

Posted by ostap | October 31, 2007 8:33 AM

Kit Marlowe taught me how to say my prayers:
“Why, this is Hell, nor am I out of it.”

Posted by Jeffrey Davis | October 31, 2007 10:21 AM

You know, I've heard that form of interrogation is not terribly effective at producing reliable answers.

Then you heard wrong, I'm afraid. You can certainly rely on that form of 'interrogation' to be very effective indeed if you're less interested in getting the truth out of the person you're drowning than you are in getting them to agree that the sky is green, Highlander 2 is a good movie and, yes, they are evil terrorist scum.

Shorter Me: Waterboarding isn't interrogation, it's just torture.

Posted by Tony J | October 31, 2007 2:25 PM

"I don't really care if crushing someone's testicles in a vice gives them psychic powers to tell you everything bad that is going to happen for six months.

The utilitarian argument is reprehensible, and if you have any kind of moral seriousness it should embarass people to make it."

Except that torture is ineffective largely because it is reprehensible. You cannot properly calibrate a procedure for something so reprehensible because decent people will not do it, or they would stop being decent. People are affected by being given power over other people.

I read that the very few psychological experiments on that had to be quickly interrupted because of enormous impact on the participants. And this means the torturers who of course were duped by the experiments (e.g. you control electric shocks of a person in another room and you only hear that person).

Reprehensible means cause an instant damage and offer very vague benefits, usually none. Thus one cannot really separate ethics from "utilitarian arguments".

For example, if we see the above connection and we are faced with the argument "but are enemies are doing so", then the utilitarian part of the answer is that the fact that enemies damage themselves does not mean that we have to do it too.

Posted by piotr | October 31, 2007 3:52 PM

So basically, waterboarding is torture, and it's obviously torture, but it would be "very wrong" for a would-be Attorney-General of the United States to say so.

I'm prepared to accept this as proper logic and an acceptable outcome, with one proviso. That is that Wittes also accept that the Senate cannot confirm a nominee to the position of Attorney General when that nominee refuses to answer so fundamental a question.

IOW, what this all amounts to is yet another reminder that while a president can implement national security policies alone, without support from congress, doing so has really bad consequences. It's a corollary to Justice Jackson's famous dictum.

In this case, it has resulted in it being literally impossible to fill the position of Attorney General -- because any nominee has to remain silent about presidential policies he doesn't have the details of, and the Senate cannot confirm any nominee who doesn't answer questions about those very policies.

We refer to this as a check and/or balance.

Ultimately, presidents do have to have congressional support for their policies, even if they can, in the short term, implement those policies without congress. It's the difference between having power to do a thing, and having authority to do it.

President Bush has accumulated a lot of power, but at the expense of having any authority.

Posted by urbino | October 31, 2007 6:05 PM